Common use of Conditions to Completion of the Merger Clause in Contracts

Conditions to Completion of the Merger. Each party’s obligations to effect the merger are subject to the satisfaction (or waiver, if permissible under applicable law) on or prior to the Closing Date of certain conditions, including: • approval of the merger agreement by the affirmative vote of at least a majority of the voting power of outstanding shares of MBI Common Stock entitled to vote thereon; • all waiting periods (and extensions thereof) applicable to the transactions contemplated by the merger agreement under the HSR Act shall have expired or been terminated; • no governmental entity of competent jurisdiction in any jurisdiction reasonably expected to have a material nexus to the current operations of either MBI or BIOX shall have (i) enacted, issued or promulgated any applicable law that is in effect as of immediately prior to the effective time of the merger and has the effect of making the merger illegal in any such jurisdiction or which has the effect of prohibiting or otherwise preventing the consummation of the merger in any such jurisdiction or (ii) issued or granted any order (whether temporary, preliminary or permanent) that is in effect as of immediately prior to the effective time and has the effect of making the merger illegal in any such jurisdiction or which has the effect of prohibiting or otherwise preventing the consummation of the merger in any such jurisdiction; • the registration statement of which this proxy statement/prospectus forms a part shall have been declared effective by the SEC under the Securities Act and no stop order suspending the effectiveness of such registration statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the SEC; • the BIOX Ordinary Shares to be issued in the merger shall have been approved for listing on Nasdaq, subject to official notice of issuance; • the accuracy of the representations and warranties of the other party contained in the merger agreement, generally as of the Closing Date, subject to the materiality standards provided in the merger agreement (and the receipt by each party of a certificate signed on behalf of the other party by an executive officer to such effect); • the performance by the other party in all material respects of the covenants and agreements required to be performed by it under the merger agreement at or prior to the Closing Date (and the receipt by each party of a certificate signed on behalf of the other party by an executive officer to such effect); • since the date of the merger agreement, there not having occurred any material adverse effect (with such term as described under the section entitled “The Merger Agreement — Material Adverse Effect”) with respect to either BIOX or MBI (and the receipt by each party of a certificate signed on behalf of the other party by an executive officer to such effect); and • the delivery by MBI of an executed certification that shares of MBI Common Stock are not “U.S. real property interests” in accordance with the Treasury Regulations under Sections 897 and 1445 of the Code, together with a notice to the IRS in accordance with the provisions of Section 1.897-2(h)(2) of the Treasury Regulations.

Conditions to Completion of the Merger. Each The parties expect to complete the merger after all of the conditions to the merger in the merger agreement are satisfied or waived, including after the merger agreement has been adopted by the stockholders of Noble Energy. The parties currently expect to complete the transaction early in the fourth quarter of 2020. However, it is possible that factors outside of each company’s control could require them to complete the transaction at a later time or not to complete it at all. In addition to the approval of the merger proposal by Noble Energy stockholders and the affirmative approval of CEMAC, each party’s obligations obligation to effect complete the merger are is also subject to the satisfaction (or waiveror, if permissible under applicable law) on or prior to the Closing Date extent permitted by law and in accordance with the merger agreement, waiver) of certain other conditions, including: • approval the effectiveness of the merger agreement by the affirmative vote of at least a majority of the voting power of outstanding shares of MBI Common Stock entitled to vote thereon; • all waiting periods (and extensions thereof) applicable to the transactions contemplated by the merger agreement under the HSR Act shall have expired or been terminated; • no governmental entity of competent jurisdiction in any jurisdiction reasonably expected to have a material nexus to the current operations of either MBI or BIOX shall have (i) enacted, issued or promulgated any applicable law that is in effect as of immediately prior to the effective time of the merger and has the effect of making the merger illegal in any such jurisdiction or which has the effect of prohibiting or otherwise preventing the consummation of the merger in any such jurisdiction or (ii) issued or granted any order (whether temporary, preliminary or permanent) that is in effect as of immediately prior to the effective time and has the effect of making the merger illegal in any such jurisdiction or which has the effect of prohibiting or otherwise preventing the consummation of the merger in any such jurisdiction; • the registration statement on Form S-4 of which this proxy statement/prospectus forms a part shall have been declared effective by (and the SEC under the Securities Act and no absence of any stop order suspending the effectiveness of such registration statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the SEC; • ), approval of the BIOX Ordinary Shares listing on the NYSE of the Chevron common stock to be issued in the merger shall have been approved for listing merger, the absence of any legal or regulatory prohibition on Nasdaqcompletion of the merger, subject to official notice of issuance; • the accuracy of the representations and warranties of the other party contained in under the merger agreement, generally as of the Closing Date, agreement (subject to the materiality standards provided set forth in the merger agreement (and the receipt by each party of a certificate signed on behalf of the other party by an executive officer to such effectagreement); • , the performance by the other party of its respective obligations under the merger agreement in all material respects and delivery of the covenants and agreements required to be performed an officer’s certificate by it under the merger agreement at or prior to the Closing Date (and the receipt by each party of a certificate signed on behalf of the other party by an executive officer to such effect); • since the date certifying satisfaction of the two preceding conditions. Neither Chevron nor Noble Energy can be certain when, or if, the conditions to the merger agreementwill be satisfied or waived, there not having occurred any material adverse effect (with such term as described under or that the section entitled merger will be completed. For a more complete summary of the conditions that must be satisfied or waived prior to completion of the merger, see “The Merger Agreement — Material Adverse Effect”) with respect Agreement—Conditions to either BIOX or MBI (and the receipt by each party of a certificate signed on behalf Completion of the other party by an executive officer Merger” beginning on page 117. Treatment of Existing Debt Following the merger, Chevron currently expects to such effect); and • leave outstanding approximately $5.9 billion aggregate principal amount of Noble Energy’s outstanding long-term debt, excluding finance lease obligations, as well as approximately $1.6 billion aggregate principal amount of Noble Midstream’s outstanding long-term debt, excluding finance lease obligations. For more information regarding the delivery by MBI treatment of an executed certification that shares existing debt, see “The Merger—Treatment of MBI Common Stock are not “U.S. real property interestsExisting Debt” in accordance with the Treasury Regulations under Sections 897 and 1445 of the Code, together with a notice to the IRS in accordance with the provisions of Section 1.897-2(h)(2) of the Treasury Regulationsbeginning on page 91.

Conditions to Completion of the Merger. Each party’s The respective obligations of each of Ventas and New Senior to effect the merger Merger are subject to the satisfaction (or waiverwaiver by Ventas and New Senior in writing, if permissible under applicable law) on at or prior to the Closing Date closing, of certain the following conditions, including: • New Senior obtaining the required vote of its stockholders to adopt the Merger Agreement; • the approval for listing on the NYSE of shares of Ventas Common Stock to be issued in connection with the Merger, subject to official notice of issuance; • the SEC having declared effective the registration statement of which this proxy statement/ prospectus forms a part, and the registration statement not being the subject of any stop order or proceedings seeking a stop order; • the absence of any temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the merger agreement by Merger; and‌ • the affirmative vote absence of at least a majority of the voting power of outstanding shares of MBI Common Stock entitled to vote thereon; • all waiting periods (and extensions thereof) any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the transactions contemplated Merger, by the merger agreement under the HSR Act shall have expired or been terminated; • no any governmental entity of competent jurisdiction in any jurisdiction reasonably expected to have a material nexus to the current operations of either MBI or BIOX shall have (i) enacted, issued or promulgated any applicable law that is in effect as of immediately prior to the effective time of the merger and has the effect of making the merger illegal in any such jurisdiction or which has the effect of prohibiting or otherwise preventing makes the consummation of the merger Merger illegal. In addition, the obligation of Ventas and Merger Sub to effect the Merger is subject to the satisfaction or waiver by Ventas in any such jurisdiction writing, at or (ii) issued or granted any order (whether temporary, preliminary or permanent) that is in effect as of immediately prior to the effective time and has the effect of making the merger illegal in any such jurisdiction or which has the effect of prohibiting or otherwise preventing the consummation closing, of the merger following additional conditions: • the representations and warranties of New Senior being true and correct to the extent and as of the dates specified in any such jurisdictionthe Merger Agreement, including that there have been no changes, effects, developments, circumstances, conditions, states of facts, events or occurrences since March 31, 2021 which have had or would reasonably be expected to have, individually or in the aggregate, a material adverse effect with respect to New Senior; • New Senior having performed in all material respects all of the obligations required to be performed by it under the Merger Agreement at or prior to the closing; • the receipt by Xxxxxx of a certificate signed on behalf of New Senior by the chief executive officer or the executive vice president of finance and accounting of New Senior, certifying that the conditions set forth in the two immediately preceding bullets have been satisfied; and • the receipt by Xxxxxx of an opinion of REIT counsel to New Senior, in form and substance reasonably satisfactory to Ventas, to the effect that at all times commencing with New Senior’s taxable year ended December 31, 2014 and through the closing date, New Senior has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code and its actual method of operation has enabled New Senior to meet, through the Effective Time, the requirements for qualification and taxation as a REIT under the Code. The obligation of New Senior to effect the Merger is subject to the satisfaction or waiver by New Senior in writing, at or prior to the closing, of the following additional conditions: • the representations and warranties of Ventas being true and correct to the extent and as of the dates specified in the Merger Agreement, including that there have been no changes, effects, developments, circumstances, conditions, states of facts, events or occurrences since March 31, 2021 which have had or would reasonably be expected to have, individually or in the aggregate, a material adverse effect with respect to Ventas; • Ventas and Xxxxxx Sub having performed in all material respects all of the obligations required to be performed by them under the Merger Agreement at or prior to the closing; • the receipt by New Senior of a certificate signed on behalf of Ventas by the chief executive officer or chief financial officer of Ventas, certifying that the conditions set forth in the two immediately preceding bullets have been satisfied; • the receipt by New Senior of an opinion from counsel to New Senior to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code; and • the receipt by New Senior of an opinion from REIT counsel to Ventas, in form and substance reasonably satisfactory to New Senior, to the effect that, at all times commencing with Xxxxxx’s taxable year ended December 31, 2017 and through the closing date, Ventas has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code, and its actual method of operation has enabled Ventas to meet, through the Effective Time, the requirements for qualification and taxation as a REIT under the Code. Fees and Expenses Other than as provided below, all fees and expenses incurred in connection with the Transaction will be paid by the party incurring those expenses, whether or not the Merger is completed. However, each party will share equally the expenses incurred in connection with filing, printing and mailing of this proxy statement/ prospectus and the registration statement on Form S-4 of which this proxy statement/prospectus forms a part shall have been declared effective and in connection with any filings required under the laws governing antitrust or merger control matters related to the transactions contemplated by the SEC under the Securities Act and no stop order suspending the effectiveness of such registration statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the SEC; • the BIOX Ordinary Shares to be issued in the merger shall have been approved for listing on Nasdaq, subject to official notice of issuance; • the accuracy of the representations and warranties of the other party contained in the merger agreement, generally as of the Closing Date, subject to the materiality standards provided in the merger agreement (and the receipt by each party of a certificate signed on behalf of the other party by an executive officer to such effect); • the performance by the other party in all material respects of the covenants and agreements required to be performed by it under the merger agreement at or prior to the Closing Date (and the receipt by each party of a certificate signed on behalf of the other party by an executive officer to such effect); • since the date of the merger agreement, there not having occurred any material adverse effect (with such term as described under the section entitled “The Merger Agreement — Material Adverse Effect”) with respect to either BIOX or MBI (and the receipt by each party of a certificate signed on behalf of the other party by an executive officer to such effect); and • the delivery by MBI of an executed certification that shares of MBI Common Stock are not “U.S. real property interests” in accordance with the Treasury Regulations under Sections 897 and 1445 of the Code, together with a notice to the IRS in accordance with the provisions of Section 1.897-2(h)(2) of the Treasury RegulationsAgreement.

Conditions to Completion of the Merger. Each party’s obligations to effect ONEOK and ONEOK Partners may not complete the merger are subject to unless each of the satisfaction (following conditions is satisfied or waiver, if permissible under applicable law) on or prior to the Closing Date of certain conditions, includingwaived: • approval of the merger agreement must have been approved by the affirmative vote or consent of holders of a majority of the outstanding ONEOK Partners common units and Class B units, voting together as a single class, at the ONEOK Partners special meeting (the “ONEOK Partners unitholder approval”); • the ONEOK stock issuance must have been approved by the affirmative vote of at least holders of a majority of the voting power of outstanding shares of MBI Common Stock entitled to vote thereonONEOK common stock voted at the ONEOK special meeting (the “ONEOK shareholder approval”); • all waiting periods no law, injunction, judgment or ruling enacted, promulgated, issued, entered, amended or enforced by any governmental authority (and extensions thereofeach a “restraint”) applicable to is in effect enjoining, restraining, preventing or prohibiting the completion of the transactions contemplated by the merger agreement under or making the HSR Act shall have expired or been terminated; • no governmental entity of competent jurisdiction in any jurisdiction reasonably expected to have a material nexus to the current operations of either MBI or BIOX shall have (i) enacted, issued or promulgated any applicable law that is in effect as of immediately prior to the effective time completion of the merger and has the effect of making transactions contemplated by the merger illegal in any such jurisdiction or which has the effect of prohibiting or otherwise preventing the consummation of the merger in any such jurisdiction or (ii) issued or granted any order (whether temporary, preliminary or permanent) that is in effect as of immediately prior to the effective time and has the effect of making the merger illegal in any such jurisdiction or which has the effect of prohibiting or otherwise preventing the consummation of the merger in any such jurisdictionagreement illegal; • the registration statement of which this joint proxy statement/prospectus forms a part shall must have been declared effective by the SEC under the Securities Act and no stop order suspending the effectiveness of such the registration statement shall be in effect will have been issued and no proceedings for such that purpose shall be pending before will have been initiated or threatened by the SEC; • the BIOX Ordinary Shares ONEOK common stock deliverable to be issued in the ONEOK Partners common unitholders as contemplated by the merger shall agreement must have been approved for listing on Nasdaqthe NYSE, subject to official notice of issuance; and • ONEOK has received an opinion of counsel to the accuracy effect that the merger should not be treated as a transaction governed by Section 351(a) of the Internal Revenue Code of 1986, as amended (the “Code”). The obligations of ONEOK and Merger Sub to effect the merger are subject to the satisfaction or waiver of the following additional conditions: • the representations and warranties of the other party contained in the merger agreement, generally as of the Closing Date, subject to the materiality standards provided in the merger agreement (of ONEOK Partners and ONEOK Partners GP being true and correct as of January 31, 2017 and as of the closing date of the merger, subject to certain standards, including materiality and material adverse effect qualifications, as described “The Merger Agreement—Conditions to Completion of the Merger”; • ONEOK Partners and ONEOK Partners GP having performed in all material respects all obligations required to be performed by each of them under the merger agreement; and • the receipt by each party XXXXX of a an officer’s certificate signed on behalf of the other party ONEOK Partners and ONEOK Partners GP by an executive officer of ONEOK Partners GP certifying that the preceding conditions have been satisfied. The obligation of ONEOK Partners to such effect)effect the merger is subject to the satisfaction or waiver of the following additional conditions: • the representations and warranties in the merger agreement of ONEOK being true and correct as of January 31, 2017 and as of the closing date of the merger, subject to certain standards, including materiality and material adverse effect qualifications, as described “The Merger Agreement— Conditions to Completion of the Merger”; • the performance by the other party ONEOK and Xxxxxx Sub having performed in all material respects of the covenants and agreements all obligations required to be performed by it each of them under the merger agreement at or prior to the Closing Date (agreement; and • the receipt by each party ONEOK Partners of a an officer’s certificate signed on behalf of the other party ONEOK by an executive officer to such effect); • since of ONEOK certifying that the date of the merger agreement, there not having occurred any material adverse effect (with such term as described under the section entitled “The Merger Agreement — Material Adverse Effect”) with respect to either BIOX or MBI (and the receipt by each party of a certificate signed on behalf of the other party by an executive officer to such effect); and • the delivery by MBI of an executed certification that shares of MBI Common Stock are not “U.S. real property interests” in accordance with the Treasury Regulations under Sections 897 and 1445 of the Code, together with a notice to the IRS in accordance with the provisions of Section 1.897-2(h)(2) of the Treasury Regulationspreceding conditions have been satisfied.

Conditions to Completion of the Merger. Each party’s The obligations of Meta and Crestmark to effect complete the merger are subject to the satisfaction (or waiver, if permissible under applicable law) on or prior to the Closing Date waiver of certain conditions, includingincluding the following: • approval of the merger agreement and the merger must be approved by the affirmative requisite vote of at least a majority of the voting power of outstanding shares of MBI Common Stock entitled to vote thereonCrestmark shareholders; • all waiting periods (the merger agreement must be adopted, and extensions thereof) applicable to the merger and the other transactions contemplated by the merger agreement under agreement, including the HSR Act shall issuance of shares of Meta common stock must be approved, by the requisite vote of holders of Meta common stock; • all requisite regulatory approvals must be obtained and in full force, and all statutory waiting periods in respect thereof must have expired or been terminated; • no governmental entity of competent jurisdiction all other approvals or consents must be obtained, in any jurisdiction reasonably expected to full force and all statutory waiting periods in respect thereof must have terminated, except for those which will not result in a material nexus to the current operations of either MBI adverse effect on Meta; • there must be no government action or BIOX shall have (i) enacted, issued other legal restraint or promulgated any applicable law that is in effect as of immediately prior to the effective time prohibition preventing completion of the merger and has or the effect of making other transactions contemplated by the merger illegal in any such jurisdiction or which has agreement; and • the effect of prohibiting or otherwise preventing the consummation of the merger in any such jurisdiction or (ii) issued or granted any order (whether temporary, preliminary or permanent) Meta common stock that is in effect as of immediately prior to the effective time and has the effect of making the merger illegal in any such jurisdiction or which has the effect of prohibiting or otherwise preventing the consummation of the merger in any such jurisdiction; • the registration statement of which this proxy statement/prospectus forms a part shall have been declared effective by the SEC under the Securities Act and no stop order suspending the effectiveness of such registration statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the SEC; • the BIOX Ordinary Shares to be issued in the merger shall have been must be approved for listing on Nasdaqthe NASDAQ Global Select Market, and the registration statement filed with the SEC, of which this joint proxy statement/prospectus is a part, must be effective. The obligation of Crestmark to complete the merger is subject to official notice the satisfaction or waiver of issuance; certain conditions, including the following: • the accuracy each of the representations and warranties of the other party Meta contained in the merger agreement, generally as of the Closing Date, subject to the materiality standards provided in the merger agreement (must be true and the receipt by each party of a certificate signed on behalf of the other party by an executive officer to such effect); • the performance by the other party correct in all material respects as of the date of the merger agreement and as of the closing date of the merger, and Meta must have performed all obligations and complied with all agreements and covenants and agreements required to be performed by it under the merger agreement at or prior to the Closing Date (and the receipt by each party of a certificate signed on behalf of the other party by an executive officer to such effect)in all material respects; • since the date of the merger agreement, there not having no condition, event, fact, circumstance or other occurrence will have occurred any which has had or is reasonably expected to have a material adverse effect (with such term on Meta, as described under the section entitled “The Merger Agreement — Material Adverse Effect”) with respect to either BIOX or MBI (surviving entity; • the bank merger agreement must have been executed and the delivered by Meta; • receipt by each party of a certificate signed on behalf legal opinion from Dickinson Wright PLLC, dated as of the other party by an executive officer to such effect)closing date of the merger, that, on the basis of facts, representations and assumptions set forth in the opinion, the merger will be treated as a tax-free reorganization under federal tax laws; and • the delivery board of directors of each of Meta and MetaBank must have approved the merger agreement, including the merger and the other transactions contemplated thereby, and the board of directors of Meta shall not have adversely withheld, withdrawn or modified the recommendation to Meta stockholders to approve the merger proposal with Crestmark. In addition, the obligation of Meta to complete the merger is subject to the satisfaction or waiver of certain conditions, including the following: • each of the representations and warranties of Crestmark contained in the merger agreement must be true and correct in all material respects as of the date of the merger agreement and as of the closing date of the merger and Crestmark must have performed all obligations and complied with all agreements and covenants required to be performed by MBI it under the merger agreement in all material respects; • the bank merger agreement must have been executed and delivered by Crestmark; • the board of directors of Crestmark and Crestmark Bank must have approved the merger agreement, including the merger and the other transactions contemplated thereby, and the board of directors of Crestmark shall not have adversely withheld, withdrawn or modified the recommendation to Crestmark’s shareholders to approve the merger proposal with Meta; • since the date of the merger agreement, no condition, event, fact, circumstance or other occurrence will have occurred which has had or is reasonably expected to have a material adverse effect on Crestmark or Meta as the surviving entity; • the employment agreement between Meta and Michael Goik must be in full force and effect as of the consummation of the merger; • Meta must have received an executed option cancellation letter from each holder of a Crestmark stock option; • Meta must have received resignations of each officer, director or manager of Crestmark and its subsidiaries effective as of the consummation of the merger; • Crestmark must have delivered an affidavit of an executed certification officer of Crestmark and Crestmark Bank pursuant to Section 1445(b)(3) of the Code that shares of MBI Common Stock Crestmark and Crestmark Bank are not “U.S. real property interests” holding companies; • receipt of a legal opinion from Katten Muchin Rosenman LLP, dated as of the date the merger is completed, that, on the basis of facts, representations and assumptions set forth in accordance with the Treasury Regulations opinion, the merger will be treated as a tax-free reorganization under Sections 897 and 1445 federal tax laws; • Crestmark must have delivered to Meta evidence of satisfaction of any corrective actions; • Meta must have received the report from BDO USA LLP regarding the valuation of certain restrictive covenants for purposes of Section 280G of the Code; • Meta stockholders must have approved an amendment to Meta’s certificate of incorporation to increase the authorized number of shares of Meta common stock; • Crestmark’s adjusted tangible common equity, together with as defined in the merger agreement, must be greater than or equal to $97.0 million; • Crestmark must have delivered to Meta Crestmark’s 2017 audited financial statements; and • Meta must have received (i) resolutions of Crestmark’s board of directors terminating Crestmark’s employee benefit plans, and (ii) other specified evidence of employee benefit plan compliance. Where the law permits, either of Meta or Crestmark could choose to waive a notice condition to its obligation to complete the merger even when that condition has not been satisfied. We cannot be certain when, or if, the conditions to the IRS merger will be satisfied or waived, or that the merger will be completed. Termination of the Merger Agreement The merger agreement may be terminated prior to the closing, before or after approval by Meta stockholders or Crestmark shareholders, for various reasons, including by: • mutual consent of Meta and Crestmark; • either party if any requisite regulatory approvals are not obtained or if the consummation of the merger has been enjoined or prohibited by any governmental regulatory authority; • either party if Meta stockholders do not approve the merger agreement or the share issuance, or if Crestmark shareholders do not approve the merger agreement; • a party who is not in accordance material breach of the merger agreement if the other party (1) materially breaches any covenants or undertakings contained in the merger agreement or (2) materially breaches any representations or warranties contained in the merger agreement, in each case, subject to cure provisions set forth in the merger agreement; • either party if the merger has not occurred on or before June 30, 2018, as shall be automatically extended for two months in order to obtain regulatory approvals if such regulatory approvals have not obtained as of such date, unless the failure to complete the merger by such date is due to the material breach of the merger agreement by the party seeking to terminate; • Meta, if the board of directors of Crestmark (1) materially breaches its non-solicitation obligations provided in the merger agreement, (2) fails to recommend, or withdraws its previous recommendation, that Crestmark shareholders approve the merger and the merger agreement, (3) recommends, proposes or publicly announces its intention to recommend or propose to engage in an acquisition transaction with any person other than Meta, (4) fails to convene the Crestmark special meeting, (5) fails to publicly recommend against an alternative acquisition proposal within five business days after being asked to do so by Meta, or (6) fails to publicly reconfirm its recommendation that Crestmark shareholders approve the merger or the merger agreement within five business days after being asked to do so by Meta; or • Crestmark, if the board of directors of Meta materially breaches its obligations to call, give notice of and commence the Meta special meeting. If the merger agreement is terminated, it will become void and have no effect and the parties will be relieved of all obligations and liabilities, except that (i) certain specified provisions of Section 1.897-2(h)(2the merger agreement will survive and (ii) if the merger agreement is terminated because of a material breach of a representation, warranty, covenant or agreement, the breaching party will not be relieved of liability for any breach giving rise to the termination; provided, however, if either party is required by the terms of the Treasury Regulations.merger agreement, and does pay, the termination fee described below, then such party will have no further obligations under the merger agreement. Crestmark will be required to pay a termination fee to Meta equal to $10.0 million, in the following circumstances: • Meta terminates the merger agreement because Crestmark (1) materially breaches its non-solicitation obligations provided in the merger agreement, subject to a five-day cure period, (2) fails to recommend, or withdraws its previous recommendation, that Crestmark shareholders approve the merger and the merger agreement, (3) recommends, proposes or publicly announces its intention to recommend or propose to engage in an acquisition transaction with any person other than Meta,